R. v. McLean Date:, 2014 BCPC 74

Citation: R. v. McLean Date: 20140401 2014 BCPC 0074 File No: 232641-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GERALD RICHARD MCLEAN EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: K. Ford Counsel for the Defendant: H. Patey Place of Hearing: Vancouver , B.C.

Date of Hearing: April 1, 2014 Date of Judgment: April 1, 2014 Introduction [ 1 ] THE COURT: Mr. McLean pled guilty to a charge under s. 145(1) (

b) of the Criminal Code that on October 26th, 2013, before the expiration of the term of imprisonment to which he was sentenced, he was at large without lawful excuse. The Crown proceeded by indictment. [ 2 ] At the time this offence occurred, Mr. McLean was subject to a long-term supervision order and residing at a designated community residential facility; namely, Belkin House in Vancouver. He was charged with this offence because he failed to return to Belkin House for his 12:30 a.m. curfew. Background [ 3 ] On March 1st, 2002, Mr. McLean was found guilty of a sexual assault of a 27-month-old child.

Following his conviction for that offence, the Crown applied to have him declared a long-term offender and sentenced to detention in a penitentiary for two years plus an additional period of supervision. [ 4 ] On October 1, 2002, Dawson J. concluded that a sentence of provincial time and/or immediate release into the community would not provide Mr. McLean with the intensive treatment he required. At that point, Mr. McLean had served 25 months in pretrial custody. He was sentenced to a further term of imprisonment of two years in a federal penitentiary.

Dawson J. recognized that this sentence was at the upper end of the range. However, having regard to all the circumstances and the fact that it was imperative Mr. McLean receive further intensive sex offender treatment, he concluded it was appropriate. [ 5 ] Since Mr. McLean was being sentenced as a long-term offender, Dawson J. made an eight-year supervision order under s. 753.1(3) (

b) of the Criminal Code . That order came into effect upon the expiry of Mr. McLean's two-year term of imprisonment. That decision is indexed at 2002 SKQB 392 . The long-term supervision order imposed by Dawson J. should have been completed by now. However, because of breaches of the long-term supervision order or being unlawfully at large, which will be detailed below, the long- term supervision order will now run until 2018. Circumstances of Current Offence [ 6 ] I will now review the events which led to the charge on October 26, 2013. Mr. McLean was released from custody on April 10, 2013.

He was directed to reside at Belkin House in Vancouver. On June 27, 2013, the parole officer provided a written notice to Mr. McLean regarding the effect of being unlawfully at large. Mr. McLean signed the notice. The notice provides he may face a new criminal charge under s. 145(1) (

b) if he chose to become unlawfully at large prior to the warrant expiry date. Moreover, on July 8, 2013, Mr. McLean was given and signed a long-term supervision certificate which set out the conditions of his long-term supervision. [ 7 ] On October 25, 2013, Mr. McLean signed out of Belkin House at 9:53 a.m. He said he was going to work at the Pacific Centre Mall and was also going to the Waves Coffee Shop. His curfew was 12:30 a.m. However, the following day he had not returned by that time.

At 2:00 a.m., on October 26, 2013, the National Monitoring Centre was advised of his absence and a Canada-wide warrant was issued for breach of the conditions of release. Additionally, an immediate news release was issued to the effect that Mr. McLean was wanted Canada wide. [ 8 ] On October 26, 2013, at approximately 1:25 p.m., a person called police to say that Mr. McLean was at Oak and 25th Avenue in Vancouver. The police went to that area and, at approximately 1:30 p.m. that day, they saw him at 33rd Avenue and Oak Street. The police approached him and took him into custody.

At some point during his interaction with the police officers, Mr. McLean said something to the effect, "You guys are fast." Mr. McLean was taken into custody. He was cooperative. He said he was not going anywhere in particular. He also said he knew he had a warrant because he had slept in and was late for curfew. [ 9 ] On November 12, 2013, he was interviewed by his parole officer, Ms. Gomez. He was given his Charter rights and cautioned. Mr. McLean told Ms. Gomez he had been with a woman named Nicky on the evening of October 25, 2013.

She was someone he worked with briefly and they had exchanged telephone numbers. He had previously told Ms. Gomez about his interactions with Nicky. Ms. Gomez had told him to stay out in the public when he was with Nicky. [ 10 ] Mr. McLean told Ms. Gomez that on the evening of October 25, 2013, he was with Nicky in a park behind Belkin House. Belkin House itself is located at 555 Homer Street in Vancouver. Mr. McLean said they had been chatting and cuddling in the park. He said they had not been sexually intimate. While he was in the park, he lent his cellphone to a friend of Nicky's.

They were waiting for the friend to return. [ 11 ] Mr. McLean said he fell asleep and did not wake up until the early morning hours of October 26, 2013. When he woke up, he felt panicked because he had missed his curfew. Nicky was still there with him. He told Nicky he would be going back to jail. She apparently told him she wanted nothing to do with him. Mr. McLean said he started walking. He said he did not know how he got to Oak Street and 25th Avenue. [ 12 ] Defence counsel, in the course of his submissions, added the following information about Mr. McLean and what he had been doing that day. Mr.

McLean was working on updating his education. He already had his GED, but was taking a drafting program, AutoCAD Advanced, and a site management program through Brighton College online. He was also working on math and English prerequisites that he needed for his courses. This was also being done online.

[ 13 ] Mr. McLean was also doing carpentry work as a contractor with one company and, on October 25, 2013, he had just signed on with a second company. In addition to the carpentry work Mr. McLean was doing for others, he was setting up his own company in order to start a business relating to the extraction of gold from discarded electronics. He had applied to preserve the company name of Nails to Nuggets. [ 14 ] Defence counsel said that on a typical day, Mr.

McLean would be out of Belkin House by 5:00 a.m., work at his carpentry job, and then go to a coffee shop where he would work on some of the online courses. On average, he was working or doing educational activities for about 14 hours a day. Defence counsel noted this was very positive, but Mr. McLean was exhausted. On October 25, 2013, he signed out at 9:53 a.m., but he had already been out of Belkin House and back that same day. [ 15 ] In response to an inquiry from the court as to why Mr.

McLean had not gone back to Belkin House, which is just around the corner from the park, when he realized he had overslept, defence counsel advised Mr. McLean was a bit out of sorts that evening and out of his comfort zone given all the projects he had undertaken. Moreover, that evening, Mr. McLean had apparently disclosed a large part of his criminal history to Nicky. It was a very emotional discussion, but a very difficult one for him. Mr. McLean was out of his comfort zone and found all of this very draining. [ 16 ] Defence counsel emphasized that what occurred that evening was not a deviation from Mr.

McLean's otherwise responsible current behaviour. Instead, it was something that had happened inadvertently. Defence counsel emphasized there was nothing in the facts before the court to suggest that Mr. McLean's failure to return to Belkin House was anything but inadvertent. In other words, defence counsel emphasized the fact that Mr. McLean did not purposely make a decision to absent himself from Belkin House. He noted this was a different situation from the one Mr. McLean was involved in in 2010 when he purposely absented himself from Harbour Lights where he was then residing in accordance with his LTSO.

Related Offences [ 17 ] The offence currently before the court is the fifth offence relating to Mr. McLean's long-term supervision order. The others are: (

a) October 11, 2005, Mr. McLean was convicted of failing to abstain from use of intoxicating substances on two occasions in May 2005. (

b) March 20, 2008, Mr. McLean was convicted of a breach of the long-term supervision order which occurred in May 2007. On that occasion, he left the community residential facility where he was residing. The breaches alleged were failure to reside, failure to return each night, and failure to take programs. He pled guilty to failure to reside and failure to take programs and was sentenced to 36 months in jail. (

c) December 13, 2010, Mr. McLean was convicted of being unlawfully at large. In April 2010, he was residing at Harbour Lights. He signed out early in the morning and did not return by 11:00 p.m. He was eventually found in an area near McBride, B.C. He had been driven there by a woman for whom he was going to build a cabin. The police found him walking along the road. He was in possession of a rifle in breach of a s. 109 order. He was sentenced to 18 months in jail for being unlawfully at large. There was a separate sentence for possession of the rifle. (

d) November 9, 2012, Mr. McLean was convicted of a breach of his long-term supervision order. On March 28, 2012, he had been released after serving his sentence on the unlawfully at large conviction noted above. On April 15, 2012, he tested positive for cocaine. He was sentenced to 12 months in jail for that breach. Position of Parties [ 18 ] The Crown submits that an 18-month jail sentence, which is what Mr. McLean received last time he was unlawfully at large, is appropriate in the circumstances. The Crown acknowledges Mr.

McLean has not been charged with breach of his long-term supervision order, but argues that in the circumstances this court should approach the sentencing as it would the sentencing for a breach of a long- term supervision order condition. The Crown relies on R. v. R.T.T. , 2012 ABCA 2000 ; R. v. Larocque , 2012 BCCA 216 ; R. v. Paul , 2012 BCPC 390 ; and R. v.

Miller , 2013 BCPC 106 . [ 19 ] The defence position on what constitutes a fit sentence in this case differs significantly from that of the Crown both with respect to the quantum of sentence and to the approach the court should take in sentencing offenders who have been at large without lawful excuse. As to quantum, the defence submits a fit sentence in Mr.

McLean's case is 90 days in custody minus credit for pretrial time served in custody for this specific offence. [ 20 ] As to approach, the defence submits an offender being sentenced for being unlawfully at large, albeit in the context of a long- term supervision order, should not be subject to the same approach used in sentencing offenders for breaches of long-term supervision orders. The defence points out that the cases relied on by the Crown are exclusively concerned with breaches of long-term supervision orders. The defence submits it would be an error to sentence Mr.

McLean as though he had breached a long-term supervision order. The defence relies on R. v. Ipeelee , 2012 SCC 13 , and R. v. Schooner , 2013 BCCA 40 . [ 21 ] The defence agrees that a reside condition is essential to the long-term supervision order. Under such orders, such a condition is a special condition. The parole board must have reasonable justification to impose a reside condition.

However, the defence argues that the fact an offender is on a long-term supervision order does not move the range of sentences for being unlawfully at large to a higher level. [ 22 ] The defence argues a sentencing judge must pay particular attention to the issue of proportionality. In this regard, the defence points to the majority reasons in Ipeelee . The defence argues proportionality requires sentencing judges to give a great deal of attention to the specific circumstances of the case before them. [ 23 ] The defence submits it is not trivializing the offence of being unlawfully at large.

However, it is a different offence than the

offence of breach of a long-term supervision order. In this case, the defence also points to the early guilty plea, Mr. McLean's positive steps towards rehabilitation, which the defence says are acknowledged in the November 14, 2013, assessment for decision report, the specific circumstances that led to Mr. McLean's failure to return to Belkin House and, in particular, the fact that Mr. McLean's failing to report by curfew time was inadvertent. Analysis [ 24 ] In R. v.

L.M. , 2008 SCC 31 , the Supreme Court of Canada summarized the fundamental principles of sentencing set out in the Criminal Code as follows, "The objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgement of and reparations for the harm they have done" must be taken into account. [ 25 ] The fundamental principle is that, "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender," and the court must also consider: ... the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances [and] that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered ...

Regard must also be had for the individualized nature of the sentencing process which requires a careful weighing of the normative principles set out by Parliament and, accordingly, vests the trial judge with considerable discretion. [ 26 ] In R. v. Pham , 2013 SCC 15 , the Supreme Court of Canada considered whether collateral immigration consequences should be taken into account in the sentencing process. In doing so, it summarized the fundamental principles of sentencing set out in the Code as follows: [6] Proportionality is a fundamental principle of sentencing.

Section 718.1 of the Criminal Code ... provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [7] LeBel J. explained proportionality as follows in R. v. Ipeelee [I am omitting the citations]: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. ...

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [8] In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process.

This Court has repeatedly emphasized the value of individualization in sentencing ... Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances ( s. 718.2 (

a) of the Criminal Code ), as well as objective and subjective factors related to the offender’s personal circumstances. [9] As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances ...

In other words, “if the personal circumstances of the offender are different, different sentences will be justified” ... [10] Ultimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community ... [ 27 ] In Ipeelee , the Supreme Court of Canada considered the appeal of two long-term offenders who were convicted of breaching a condition of their long-term supervision orders. In doing so, it reviewed the long-term offender regime.

It noted that the legislative purpose of a long-term supervision order, which is a form of conditional release, is: ... to contribute to the maintenance of a just, peaceful and safe society by facilitating the rehabilitation and reintegration of long-term offenders. [ 28 ] It emphasized that the two specific objectives of long-term supervision are protection of the public from risk of reoffending and the rehabilitation and reintegration into the community of the offender. In particular, it noted at paragraph 48:

Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affected their determinations of what is a fit sentence for breaching a condition of an LTSO. [ 29 ] The Supreme Court of Canada noted that the leading appellate court decision in this area was R. v. W.(H.P.) , 2003 ABCA 131 . In that case, the Alberta Court of Appeal emphasized protection of society as the paramount goal when sentencing an offender for breach of a long-term supervision order.

The Alberta Court of Appeal said that rehabilitation had a limited role. The Supreme Court of Canada said this characterization of the long-term offender regime is incorrect. However, the Supreme Court of Canada noted that rehabilitation will not always be the foremost consideration when sentencing an offender for breach of a long-term supervision order. [ 30 ] It said the duty of the sentencing judge is to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing.

In particular, the court said the following: [51] As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence. In all instances, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [52] It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of an LTSO.

The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender’s risk of reoffence, and the circumstances of the breach. However, a few comments may be instructive. [ 31 ] At paragraph 55 of its decision in Ipeelee , the Supreme Court of Canada wrote that a sentencing judge's duty in imposing a fit sentence requires a "contextual analysis." It adopted Smith J.A.'s statement in R. v.

Deacon , 2004 BCCA 78 , that: ... the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender’s entire history of criminal conduct. [ 32 ] The Supreme Court of Canada closed the

section of the decision in which it reviewed the sentencing for breach of long-term supervision order by saying the following: Breach of an LTSO is not subject to a distinct sentencing regime or system. In any given case, the best guides for determining a fit sentence are the well-established principles and objectives of sentencing set out in the Criminal Code . Although those comments were made in the context of a sentencing for a breach of a long-term supervision order, I am satisfied they are equally appropriate and applicable to the offence before me. [ 33 ] I now turn to a fit sentence in this case.

I will begin by outlining why I do not accept the specific submissions of either the Crown or the defence in regard to the quantum of a fit sentence in this case. [ 34 ] The Crown submits a fit sentence is 18 months in jail which is similar to the sentence Mr. McLean received in December 2010 when he was convicted and sentenced for being unlawfully at large. The Crown, in particular, relies on R. v.

R.T.T. for the proposition that it would be plainly wrong to trivialize as benign or as minor any breaches of conditions of a long-term supervision order that go to the very heart of the investment of trust and the self-discipline of the offender. [ 35 ] The Crown acknowledges Mr. McLean did not breach a condition of his long-term supervision order as such. However, the Crown submits this is the fifth time Mr. McLean has been before the courts for offences relating to his LTSO. Accordingly, in these particular circumstances, the sentence should be one which brings home to Mr.

McLean the importance of abiding by the conditions of his long-term supervision order and any related curfews that may apply because of the reside condition. [ 36 ] I accept the Crown's proposition that direct breaches of long-term supervision orders and what I will call indirect breaches for ease of reference relating to such orders, such as being unlawfully at large, must not be trivialized. However, it is important to undertake an individualized analysis of the offence and the offender before the court and not impose a sentence simply because it was imposed on the offender for a similar offence in the past.

In my view, imposing an 18-month jail sentence in light of the particular circumstances before me would not result in a fit sentence. [ 37 ] Defence counsel, on the other hand, submits that the appropriate sentence for Mr. McLean is 90 days in jail minus time served. The defence relies on the principles outlined in Ipeelee and on Schooner , a very recent case of our Court of Appeal. In that case, Schooner appealed the imposition of a one-year jail sentence for being unlawfully at large.

Schooner was on parole and failed to return to the Salvation Army residential facility at which he was required to reside. [ 38 ] In Schooner , the Crown put before the court a number of cases which in the Crown's view supported the proposition that the applicable range of sentence for being unlawfully at large is one month to one year. The court found, given the time period within which these cases were decided, that they were not particularly helpful. Moreover, the court concluded that the cases did not support the Crown's assertion that an appropriate sentence was one year. The court said:

... I do conclude from those cases that a one year sentence for being unlawfully at large, in circumstances similar to this offender, is outside the range for this type of non-compliance with the justice system type offence. There are no special circumstances that would compel a judge to sentence the accused in this case to one year. Moreover, the judge did not take into account the youth of the accused and the sentencing principle of rehabilitation.

In Schooner , the court concluded a one-year sentence was not fit and instead imposed a sentence of four months. [ 39 ] In my view, the Schooner decision is distinguishable from the case before me for the following reasons. Mr. Schooner was on parole and not subject to a long-term supervision order. He was only 22 years old at the time and considered a youthful offender. Although he had a youth record, he had only several adult convictions.

There were no special circumstances to justify a one-year sentence in that case and the judge did not take into account the youth of the accused and the principle of rehabilitation. [ 40 ] In Mr. McLean's case, documents filed in court indicate he was born in 1968. That makes him 45 or 46 years old depending on the month in which he was born.

He has an adult record dating back to 1992 for various offences including possession of a weapon, possession of property obtained by crime, sexual assault with a weapon, B and E, failing to comply with a recognizance, and failing to comply with a probation order. [ 41 ] Moreover, Mr. McLean has four other convictions specifically related to the current long-term supervision order.

He has convictions for a breach of the long-term supervision order in 2005, a conviction for breach of the long-term supervision order in 2008 relating to a 2007 incident, a conviction for being unlawfully at large in 2010, and another conviction for a breach of a long-term supervision order in 2012. It is notable that the 2012 conviction for breach of a long-term supervision order related to an incident which occurred approximately two weeks after Mr. McLean had been released for serving a sentence for being unlawfully at large.

As noted by the Crown, the offence before me is now the fifth conviction relating to his long-term supervision order. This alone distinguishes Mr. McLean's situation from that of Mr. Schooner. [ 42 ] The circumstances of Mr. McLean's current offence also merit some comment. The defence repeatedly stressed that Mr. McLean's failure to report by his 12:30 a.m. curfew was inadvertent. It was not something he planned to do. He simply fell asleep after what the defence described as a physically and emotionally exhausting day. [ 43 ] Even if I accept defence counsel's characterization of what led Mr.

McLean to miss his 12:30 a.m. curfew, his actions once he woke up are troubling. Instead of reporting to Belkin House, which was described as being directly behind the park where he had fallen asleep, he left the downtown area completely. He was found by police later that afternoon miles away at Oak Street and 33rd Avenue. It is evident from the facts placed before me at the sentencing hearing that when Mr. McLean woke up in the early morning hours, he made a decision not to return to Belkin House, although he could easily have done so. This was not mere inadvertence, but a conscious act.

I am not suggesting this indicates a lack of remorse. Instead, I am considering the totality of Mr. McLean's conduct in assessing the circumstances of the current offence. His conduct when he woke up is part of those circumstances. [ 44 ] Further, his response on waking up is also a factor in assessing how Mr. McLean's risk to reoffend can be managed. In 2002, Dawson J. found that Mr. McLean represented a substantial risk to violently reoffend including inflicting injury or severe psychological damage to other persons.

He was placed on an eight-year LTSO which has been effectively extended by approximately five years because of new convictions for offences committed while he was under the LTSO. [ 45 ] The most recent assessment for decision report which was prepared November 14, 2013, indicates he has made some gains since his last conviction. He had been progressing with relative stability until he failed to report by curfew time on October 26, 2013. The defence urges this court to pay particular attention to Mr.

McLean's gains in balancing rehabilitation with other sentencing objectives. [ 46 ] I acknowledge it is important to consider any positive gains Mr. McLean may have made. However, I must also consider the significance of his failure to return to Belkin House by the 12:30 a.m. curfew time. On its face, a curfew breach may appear to be a minor offence and one that falls at the lower end of the scale of offences. However, in Mr. McLean's case, given his criminal record, the index offence which led to the imposition of the LTSO, the nature of the risk sought to be addressed, and Mr.

McLean's four prior LTSO related convictions, such an apparently minor offence takes on a different and, in my view, more alarming significance. How can the responsible authorities manage his risk to reoffend if Mr. McLean does not follow the rules designed to facilitate his rehabilitation and reintegration into the community? [ 47 ] In crafting a fit sentence for Mr. McLean, I must ensure the sentence I impose is not so onerous that it discourages his rehabilitative efforts.

At the same time, the sentence must provide a meaningful consequence that reflects the gravity of this particular offence and the degree of Mr. McLean's responsibility. Such a delicate balance is not always easy to achieve. [ 48 ] In this case, for the reasons set out above, I find that a sentence of 11 months is appropriate. Mr.

McLean shall receive credit, which I will discuss with counsel in a moment, for presentence custody he has now actually served for this offence; that is, that the presentence time he has already served will be deducted from the 11-month sentence imposed today. [ 49 ] Those are my reasons. [REASONS FOR SENTENCE CONCLUDED]